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First Amendment To Second Amended And Restated Credit Agreement - ACXIOM CORP - 6-14-2004

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First Amendment To Second Amended And Restated Credit Agreement - ACXIOM CORP - 6-14-2004 Powered By Docstoc
					FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the "Am August 11, 2003 is among ACXIOM CORPORATION, a Delaware Corporation (the "Borrower"), th and JPMORGAN CHASE BANK, as the agent (the "Agent"). RECITALS: A. The Borrower, the Agent, and the lenders party thereto have entered in Amended and Restated Credit Agreement dated as of February 5, 2003 (as amended or otherwise time, the "Agreement"). B. The Borrower has requested that the Agent and the Lenders amend cert Agreement. Subject to satisfaction of the conditions set forth herein, the Agent and t are willing to amend the Agreement as herein set forth. NOW, THEREFORE, in consideration of the premises consideration, the receipt and sufficiency of which are hereby effective as of the date hereof unless otherwise indicated: herein contained and oth acknowledged, the parties

ARTICLE I. Definitions Section 1.1. Definitions. Capitalized terms used in this Amendment, to the extent herein, shall have the same meanings as in the Agreement, as amended hereby. ARTICLE II. Amendments

Section 2.1. (a)

Amendment to Section 6.08.

Section 6.08 of the Agreement is amended as fo

Subclause (i) of Section 6.08(a) is amended in its entirety to read as follows: (i) The Borrower may declare and pay dividends ratably w its common stock in an aggregate amount not to exceed $15,000,000 in a of the Borrower and Subsidiaries may declare and pay dividends ratably w their common stock and;

(b)

Subclause (viii) of Section 6.08(a) is amended in its entirety to read as follows: (viii) In addition to the Restricted Payments permitted b (vii) of this Section 6.08(a), the Borrower may declare and

through

Restricted Payment if: (A) no Default exists or would result therefrom;

(B) the Borrower's Leverage Ratio (1) calculated recent quarter end prior to the date of the Restricted Payment and (2) p basis acceptable to the Agent) for the end of the quarter during which su Payment is made does not exceed 2.00 to 1.00; and (C) the aggregate amount paid by the Borrow Restricted Payments made under the permission of this clause (vii Effective Date and made under clause (a)(iii) of Section 6.08 of the Pr since November 12, 2002 does not exceed $125,000,000. (c) Subclause (ix) of Section 6.08(a) is amended in its entirety to read as follows: (ix) In addition to the Restricted Payments permitted b

through (viii) of this Section 6.08(a), the Borrower may prepay or repu any portion of the Subordinated Debt on or after January 15, 2005 if as any such prepayment or repurchase and after giving effect thereto: (A) (B) Notice; and (C) after giving proforma effect to the proposed repurchase, the Borrower's Leverage Ratio calculated on a proforma b most recent quarter end prior to the date of prepayment or repurchase d 1.50 to 1.00. Any prepayment or repurchase of Subordinated Debt made on or after Ja shall first be counted in determining the use of the $125,000,000 ba above in clause (viii) of this Section 6.08(a) (if any of such b available) and then shall be made only under the permissions of this c not counted as a use for purposes of determining compliance with clause Section 6.08(a). Section 2.2. Amendment to Section its entirety to read as follows: 7.01. The first sentence of Section 7.01 of the no Default exists or would result therefrom; Borrower shall have delivered to Agent a Co

The Borrower will at all times maintain Consolidated Tangible defined below) in an amount not less than (a) $275,000,000 plus ( Borrower's Consolidated Net Income for the period from April 1, 2004 fiscal quarter to have completely elapsed as of the date of determ (c) 100% of the net cash proceeds of any sale of Equity Intere contributions to the capital of the Borrower received by Borrower since calculated without duplication. Section 2.3. Amendment to Section its entirety to read as follows: 7.02. The first sentence of Section 7.02 of the

As of the last day of each fiscal quarter ending after June 3 Borrower shall not permit the ratio of Total Indebtedness as of such da EBITDAR for the four (4) Fiscal Quarters then ended to exceed 2.50 to 1. that, if the Borrower shall have delivered a Covenant Change Notice to th as of the last day of each fiscal quarter ending after such delivery, shall not permit the ratio of Total Indebtedness as of such date to Adj for the four (4) Fiscal Quarters then ended to exceed 2.00 to 1.00. Section 2.4. Agreement: Amendment to Section 10.12. The following sentence is added to the end

Notwithstanding anything in the Prior Agreement or in any other Loan D contrary, the parties hereto may disclose to any Person, without limi kind, the "tax treatment" and "tax structure" (in each case, within Treasury Regulation Section 1.6011-4) of the transactions contemplate Documents and all materials of any kind (including opinions or other that are provided to the Borrower relating to such tax treatment and t except that, with respect to any document or similar item that in either information concerning the tax treatment or tax structure of the transa as other information, this proviso shall only apply to such portions o or similar item that relate to the tax treatment or tax structure of the contemplated thereby. ARTICLE III. Conditions Precedent Section 3.1. Conditions. The effectiveness of the following conditions precedent: (a) The Agent shall have Required Lenders; received this of Article II of this Amendment is subje

Amendment

duly executed by the

Borrower,

t

(b) Each Lender who has executed this Amendment by August 11, 2003 shall have equal to 0.070% of its Revolving Commitment in effect as of the date of this Amendment;

rec

(c) The representations and warranties contained herein and in all other Loan Documen shall be true and correct in all material respects as of the date hereof as if made on th for such representations and warranties limited by their terms to a specific date; (d) No Default shall exist; and

(e) All proceedings taken in connection with the transactions contemplated by t documentation and other legal matters incident thereto shall be satisfactory to Agent Jenkens & Gilchrist, a Professional Corporation. ARTICLE IV. Miscellaneous Section 4.1. Ratifications. The terms and provisions set forth in this Amendment sha all inconsistent terms and provisions set forth in the Agreement and except as expressly by this Amendment, the terms and provisions of the Agreement and the other Loan Docum confirmed and shall continue in full force and effect. The Borrower, the Agent and the Agreement as amended hereby and the other Loan Documents shall continue to be legal enforceable in accordance with their respective terms. For all matters arising prior t this Amendment, the Agreement (as unmodified by this Amendment) shall control. Section 4.2. Representations and Warranties; Release. The Borrower hereby represe Agent and the Lenders as follows: (a) no Default exists, and (b) the representations and the Loan Documents are true and correct on and as of the date hereof with the same effec as of such date except with respect to any representations and warranties limited by th date. IN ADDITION, TO INDUCE THE AGENT AND THE LENDERS TO AGREE TO THE TERMS OF THIS AMEND EACH GUARANTOR (BY ITS EXECUTION BELOW) REPRESENTS AND WARRANTS THAT AS OF THE DATE O AMENDMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR RIGHTS OF RECOUPMENT WITH RESPE COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS AND IN ACCORDANCE THEREWITH IT: (A) WAIVER. WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, RIGHTS OF RECOUPMENT, DEFEN WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF ITS EXECUTION OF THIS AMENDMENT AND (B) RELEASE. RELEASES AND DISCHARGES THE AGENT AND THE LENDERS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY THE "RELEASED PAR OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES OF ACTION OR DEMANDS WHATS UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH THE BORROWER OR ANY GUARAN CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AN WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. Section 4.3. Survival of Representations and Warranties. All representations and Amendment shall survive the execution and delivery of this Amendment, and no investigation or any closing shall affect the representations and warranties or the right of the Agen upon them. Section 4.4. Reference to Agreement. Each of the Loan Documents, including the Ag other agreements, documents, or instruments now or hereafter executed and delivered pursu or pursuant to the terms of the Agreement as amended hereby, are hereby amended so that Loan Documents to the Agreement shall mean a reference to the Agreement as amended hereby. Section 4.5. Expenses of Lender. As provided in the Agreement, Borrower agrees to and expenses incurred by the Agent in connection with the preparation, negotiation, Amendment, including without limitation, the costs and fees of the Agent's legal counsel. Section 4.6. Severability. Any provision of this Amendment held by a court of compete invalid or unenforceable shall not impair or invalidate the remainder of this Amendment shall be confined to the provision so held to be invalid or unenforceable. Section 4.7. Applicable Law. This Amendment shall be governed by and construed in ac of the State of Texas and the applicable laws of the United States of America. Section 4.8. Successors and Assigns. This Amendment is binding upon and shall inur Agent, each Lender, the Borrower, each Guarantor and their respective successors and a Borrower nor any Guarantor may assign or transfer any of its rights or obligations hereu written consent of the Lenders. Section 4.9. Counterparts. This Amendment may be executed in one or more counter counterparts, each of which when so executed shall be deemed to be an original, but al together shall constitute one and the same agreement.

Section 4.10. Effect of Waiver. No consent or waiver, express or implied, by the Ag for any breach of or deviation from any covenant, condition or duty by the Borrower or a deemed a consent or waiver to or of any other breach of the same or any other covenant, cond Section 4.11. Headings. The headings, captions, and arrangements only and shall not affect the interpretation of this Amendment. used in this Amendm

Section 4.12. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE AGREEMENT A AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDIN ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRI SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEM HERETO. Section 4.13. Required Lenders. The Agreement may be modified as provided in thi agreement of the Required Lenders which means Lenders having fifty-one percent (51%) Revolving Exposures and unused Revolving Commitment (such percentage applicable to a Lender "Required Lender Percentage"). For purposes of determining the effectiveness of this Am Required Lender Percentage is set forth on Schedule 4.13 hereto. Executed as of the date first written above. ACXIOM CORPORATION, as the Borrower

By: -----------------------------------Dathan A. Gaskill, Corporate Fin JPMORGAN CHASE BANK, as the Agent, Swingline Lender and as a Lender

By: -----------------------------------Michael J. Lister, Vice Presiden BANK OF AMERICA, N.A., as syndication a

By: -----------------------------------Name: Title: U.S. BaNK National ASSOCIATION (forme as documentation agent and as a Lender

By: -----------------------------------Name: Title: SUNTRUST BANK, as a Lender

By: -----------------------------------Name: Title: WACHOVIA BANK, N.A., as a Lender

By: -----------------------------------Name: Title: ABN AMRO BANK N.V., as a Lender

By: -----------------------------------Name: Title:

By: -----------------------------------Name: Title: UNION PLANTERS BANK, N.A., as a Lender

By: -----------------------------------Name: Title:

Guarantor Consent Each of the undersigned Guarantors: (i) consent and agree to this Amendmen limitation, Section 4.2, and (ii) agree that the Loan Documents to which it is a party sha and effect and shall continue to be the legal, valid and binding obligation of such Guaranto it in accordance with their respective terms. GUARANTORS: Acxiom CDC, Inc. Acxiom / May & Speh, Inc. Acxiom RM-Tools, Inc. ACXIOM ASIA, LTD. ACXIOM PROPERTY DEVELOPMENT, INC. ACXIOM / PYRAMID INFORMATION SYSTEMS, I ACXIOM E-PRODUCTS, INC. ACXIOM TRANSPORTATION SERVICES, INC. ACXIOM / DIRECT MEDIA, INC. GIS INFORMATION SYSTEMS, INC. ACXIOM UWS, LTD. ACXIOM INFORMATION SECURITY SERVICES, I ACXIOM INTERIM HOLDINGS, INC.

By: -----------------------------------Dathan Gaskill, Authorized Offic

SCHEDULE 4.13, Solo Page DALLAS2 988580v6 12283-00139 SCHEDULE 4.13 to FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Required Lenders

================================================== ========================= =============== Lenders Agree (insert % from Required Lender signs Amendme Lender Percentage Held

================================================== JPMorgan Chase Bank -------------------------------------------------U.S. Bank National Association -------------------------------------------------Bank of America, N.A. -------------------------------------------------ABN AMRO Bank, N.V. -------------------------------------------------SunTrust Bank -------------------------------------------------Wachovia Bank, N.A. -------------------------------------------------Union Planters Bank, N.A. -------------------------------------------------TOTAL ==================================================

========================= 20.00000000% ------------------------16.66666666% ------------------------16.66666666% ------------------------13.33333333% ------------------------13.33333333% ------------------------13.33333333% ------------------------6.66666666% ------------------------100.00% =========================

=============== --------------------------------------------------------------------------------------------------===============